U.S. AND CHINA ARE WIELDING THEIR POWER IN APPLYING INTERNATIONAL LAW WITH A UNILATERALIST APPROACH

International law only for weaker states?

BRAHMA CHELLANEY

On the face of it, there is nothing in common between China’s declaration on November 23 this year of an air defence identification zone (ADIZ) extending to territories it does not control and America’s arrest, strip search and handcuffing of a New York-based Indian woman diplomat on December 12 for allegedly underpaying a domestic help she had brought with her from India. In truth, these actions epitomise the unilateralist approach of these powers.

A just, rules-based international order has long been touted by powerful states as essential for international peace and security. But there is a long history of major powers using international law against other states but not complying with it themselves, and even reinterpreting or making new multilateral rules to further their geopolitical and economic interests. The League of Nations failed because it could not punish or deter some powers from flouting international law.

Today, the United States and China serve as prime examples of a unilateralist approach to international relations, even as they aver support for strengthening international rules and institutions.

Disregarding global treaties

Take the U.S. Its refusal to join a host of critical international treaties — from the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1997 U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses, to the 1998 International Criminal Court Statute — has set a bad precedent. Add to this its international “invasions” in various forms, including cyber warfare and mass surveillance, drone attacks and regime change.

Unilateralism has remained the leitmotif of U.S. foreign policy, regardless of whether a Democrat or a Republican is in the White House. Forget international law, President Barack Obama bypassed even Congress when the U.S. militarily intervened in Libya and effected a regime change in 2011 — an action that has boomeranged, sowing chaos and turning that country into a breeding ground for al-Qaeda-linked, transnational militants, some of whom assassinated the American ambassador there.

Carrying out foreign military interventions by cobbling coalitions together under the watchword “you’re either with us or against us” has exacted — as Iraq and Afghanistan show — a staggering cost in blood and treasure without advancing U.S. interests in a tangible or sustainable manner.

Meanwhile, China’s growing geopolitical heft has emboldened its muscle-flexing and territorial nibbling in Asia in disregard of international norms. China rejects some of the very treaties that the U.S. has declined to join, including the International Criminal Court Statute and the Convention on the Law of the Non-Navigational Uses of International Watercourses — the first ever law that lays down rules on the shared resources of transnational rivers, lakes and aquifers.

America’s appeal to China to act as a “responsible stakeholder” in the global system undergirds the need for the two to address their geopolitical dissonance and the issues arising from it. Yet, the world’s most powerful democracy and autocracy have much in common on how they approach international law.

Might remains right

For example, the precedent the U.S. set in an International Court of Justice (ICJ) case filed by Nicaragua in the 1980s still resonates, underscoring that might remains right in international relations, instead of the rule of law.

The ICJ held that Washington violated international law both by supporting the contras in their insurrection against the Nicaraguan government and by mining Nicaragua’s harbours. The U.S. — which refused to participate in the proceedings after the court rejected its argument that it lacked jurisdiction to hear the case — blocked the judgment’s enforcement by the U.N. Security Council, preventing Nicaragua from obtaining any compensation.

The only major country that has still not ratified UNCLOS is the U.S., preferring to reserve the right to act unilaterally. Nonetheless, it seeks to draw benefits from this convention, including freedom of navigation of the seas.

For its part, China still appears to hew to Mao Zedong’s belief that “power grows out of the barrel of a gun.” So, it will not consider international adjudication to resolve its territorial claims in, say, the South China Sea, more than 80 per cent of which it now claims arbitrarily.

Indeed, it ratified UNCLOS only to reinterpret its provisions and unveil a nine-dashed claim line in the South China Sea and draw enclosing baselines around the Japanese-controlled Senkaku Islands in the East China Sea. Worse still, China has refused to accept the UNCLOS dispute-settlement mechanism so as to remain unfettered in altering facts on the ground.

The Philippines, which has since 2012 lost effective control to a creeping China, of first the Scarborough Shoal and then the Second Thomas Shoal, has filed a complaint against Beijing with the International Tribunal for the Law of the Sea (ITLOS). Beijing, however, has simply refused to participate in the proceedings, as if it were above international law.

Whatever the tribunal’s decision, Beijing will shrug it off. Only the Security Council can enforce any international tribunal’s judgment on a non-compliant state. But China wields a veto there and will block enforcement of an adverse ruling, just as the U.S. did in the Nicaraguan case.

Even so, Beijing has mounted punitive pressure on Manila to withdraw its case, which seeks to invalidate China’s nine-dashed line. Beijing’s precondition that the Philippines abandon its case forced President Benigno Aquino to cancel his visit to the China-ASEAN Expo in Nanning three months ago.

Beijing’s new air defence zone, while aimed at solidifying its claims to territories held by Japan and South Korea, is provocative because it extends to areas China does not control, setting a dangerous precedent in international relations. China and Japan, and China and South Korea, now have “duelling” ADIZs, increasing the risks of armed conflict, especially between Japan and China, in an atmosphere of nationalist grandstanding over conflicting claims.

Japan has asked its airlines to ignore China’s demand for advance notification of flights even if they are merely transiting the new zone and not heading towards Chinese territorial airspace. By contrast, the Obama administration has advised U.S. carriers to obey the prior-notification demand.

There is a reason why Washington has taken a different stance on this issue than its ally Japan. Although the prior-notification rule in American policy applies only to aircraft headed for U.S. national airspace, the U.S., in actual practice, demands advance notification of all civilian and military flights through its ADIZ, irrespective of their intended destination.

If other countries emulated the example set by China and the U.S. to establish unilateral claims to international airspace, a dangerous situation would emerge. Before every country asserts the right to establish an ADIZ with its own standards, binding multilateral rules must be created to ensure the safety of commercial air traffic. But who will take the lead — the two countries that have pursued a unilateralist approach on this issue, the U.S. and China?

Convention and interpretations

Now consider the case of the Indian diplomat, whose treatment India’s National Security Adviser Shivshankar Menon called “despicable and barbaric.” She was arrested as she dropped off her daughter at a Manhattan school, then strip-searched and cavity-searched and kept in a cell with drug addicts and prostitutes for several hours before posting $250,000 bail.

True, this consulate-based diplomat enjoyed only limited diplomatic immunity under the 1963 Vienna Convention on Consular Relations. But this convention guarantees freedom from detention until trial and conviction, except for “grave offences.” Can a wage dispute between a diplomat and her domestic help qualify as a “grave offence” warranting arrest and humiliation? Would the U.S. tolerate similar treatment of one of its consular officers?

The harsh truth is that the U.S. interprets the convention restrictively at home but liberally overseas so as to shield even the spies and contractors it sends. A classic case is the one that involved the CIA contractor, Raymond Davis, who fatally shot two men in 2011 in Lahore. Claiming Davis to be a bona fide diplomat with its Lahore consulate who enjoyed immunity from prosecution, Washington accused Pakistan of “illegally detaining” him, with Mr. Obama defending him as “our diplomat.” The U.S. ultimately secured his release by paying “blood money” of about $2.4 million to the relatives of the men.

Despite a widely held belief that the present international system is pivoted on rules, the fact is that major powers — as in history — are rule makers and rule imposers, not rule takers. They have a propensity to violate or manipulate international law when it is in their interest to do so. Universal conformity to a rules-based international order still seems distant.

( Brahma Chellaney, a geostrategist, is the author, most recently, of Water, Peace, and War, Oxford University Press .)

The harsh truth is that the U.S. interprets the 1963 Vienna Convention on Consular Relations restrictively at home but liberally overseas so as to shield even the spies and contractors it sends